UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(D) of the Securities Exchange Act Of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On May 17, 2024, the Board of Directors of XWELL, Inc. (the “Company”) adopted and approved the third amended and restated bylaws of the Company (the “Amended and Restated Bylaws”), effective as of the same date, to add (i) to Article I, Section 1.2, an orderly process for stockholders to propose business or nominations for the election of directors to be considered at annual meetings (the “advance notice” provisions), (ii) to Article I, Section 1.10, an orderly process for stockholders to request a record date for stockholder action by written consent and (iii) to update certain ministerial items therein, including certain provisions to comply with Rule 14a-9 pursuant to the Securities Exchange Act of 1934, as amended.
The advance notice provisions require stockholders to provide advance notice of stockholder proposals or nominations of directors at an annual meeting, and such advance notice must be delivered to, or mailed and received at, the principal executive offices of the Company not less than sixty (60) days nor more than ninety (90) days prior to the anniversary date of the immediately preceding annual meeting of stockholders, subject to certain exceptions. In addition, the advance notice provisions require a stockholder who submits a nomination or other proposal to disclose, among other things, information about the interests that the stockholder has related to the Company and its common stock, including interests arising from derivative securities, voting arrangements, understandings or other relationships with the stockholder submitting the nomination or proposal; and with respect to a proposal other than a nomination, a brief description of the business desired to be brought before the meeting, the reasons for such business and the material interests of the stockholder in such business, as well as information about any agreements, arrangements or understandings the stockholder may have with other stockholders of the Company relating to the proposal of other business.
As a result of the advance notice provisions, stockholders must provide written notice of director nominations or other proposals intended to be brought before the 2024 annual meeting of stockholders of the Company, and such notice must be received by the Company, not earlier than the close of business on May 24, 2024, nor later than the close of business on June 23, 2024.
The foregoing description of the Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, a copy of which is filed with this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Description of Exhibit | |
| 3.1 | Third Amended and Restated Bylaws of XWELL, Inc. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| XWELL, Inc. | ||
| Date: May 21, 2024 | By: | /s/ Scott R. Milford |
| Name: | Scott R. Milford | |
| Title: | President and Chief Executive Officer | |